Will Elena Kagan Allow Books to be Banned?

As solicitor general of the United States, Elena Kagan argued in front of the Supreme Court that the federal government had the constitutional authority to ban certain political pamphlets. She also strongly implied that some political books, if they were partisan enough, could also be censored.

Kagan’s extraordinary claims emerged during the second oral argument of Citizens United v. Federal Election Commission, the campaign finance case made famous by President Barack Obama when he publicly excoriated the justices for their ruling during his State of the Union address. The president alleged that Citizens United would allow corporations to subvert the political process with their economic power. In fact, the case concerns the fundamental political liberties of all citizens. The true stakes were dramatically revealed in the two rounds of oral argument heard by the Court.

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In the first argument before the Court, on March 24, 2009, Kagan’s deputy, Malcolm L. Stewart, represented the government by arguing for the constitutionality of a statute prohibiting corporations and unions from spending funds from their general treasuries to advocate the election or defeat of political candidates. The justices subjected Stewart to a series of stark hypothetical situations testing the extent of the censorship power that the Obama Administration viewed as constitutionally permissible.

For example, Stewart was asked by Chief Justice John Roberts what would happen if a corporation were to publish a 500-page book discussing the American political system which concluded with a single sentence endorsing a particular candidate. Kagan’s deputy answered that such an endorsement would constitute “express advocacy” and therefore the corporation could only fund the publication of the book through a political action committee. “And if they didn’t, you could ban it?” asked the chief justice. “If they didn’t, we could prohibit publication of the book,” Stewart replied.